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EXHIBIT 10(Z)
EMPLOYMENT AGREEMENT
This Employment Agreement made and entered into this twenty-second day
of February, 2000, effective as of the eleventh day of February, 2000 (the
"Effective Date"), by and between Union Planters Corporation, and its wholly
owned subsidiary, Union Planters Bank, N.A.(hereinafter collectively referred to
as "UP"), and Xxxx X. Xxxxxxxxx ("Executive").
WHEREAS, it is the intention and desire of the parties hereto to enter
into a formal agreement whereby UP will have the benefit of the employment of
Executive during the period covered by this Agreement and Executive will have
the assurance of such continued employment during the period covered by this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants, representations, warranties and agreements of the parties
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound, agree as follows:
1. Employment.
(a) Term. UP hereby agrees to employ Executive and
Executive hereby agrees to serve UP as Senior Executive Vice President
in accordance with the terms and conditions set forth herein, for a
period of three (3) years (the "Initial Term"), commencing on the
Effective Date of this Agreement, as set forth above; subject, however,
to earlier termination as expressly provided herein.
The Initial Term shall automatically be extended for one (1)
additional year at the end of thereof, unless, subject to the
provisions set forth below in this Paragraph 1(a), either party hereto
shall terminate this Agreement at the end of the Initial Term or at the
end of any successive one (1) year term thereafter by giving the other
party written notice of the intent not to renew, delivered at least
ninety (90) days prior to the end of such Initial Term or successive
term; provided, however, that in the event UP shall elect not to renew
this Agreement after the Initial Term in accordance with the provisions
of this Paragraph 1(a) and shall give notice of such election not to
renew as provided herein, Executive shall be entitled to the
compensation set forth in Paragraph 10 hereof.
In the event such notice of intent not to renew is properly
delivered subject to the provisions set forth in this Paragraph 1(a),
this Agreement, along with all corresponding rights, duties and
covenants, shall automatically expire at the end of the Initial Term or
successive term then in progress.
(b) Position. UP shall employ the Executive during the
term of this Agreement as Senior Executive Vice President. The
Executive shall be responsible to the Chairman of the Board and Chief
Executive Officer of UP (the "UP Chairman") and to the President and
Chief Operating Officer of UP (the "UP President"), or to such other UP
executive as either of them shall designate from time to time. The
Executive may engage in charitable, civic or community activities and,
with the prior approval of the UP Chairman or the UP President, may
serve as a director of any other business corporation. The Executive's
office for the performance of his duties under this Agreement shall be
located within the greater metropolitan area of Memphis, Tennessee.
(c) Cash Payment. Upon the execution hereof, Executive
shall be paid the sum of Seventy Five Thousand Dollars ($75,000.00).
Should Executive terminate his employment without Good Reason during
the Initial Term hereof, Executive shall repay UP one-third of such
Cash Payment for each year or portion thereof of the Initial Term
remaining after such termination.
2. Base Salary. As compensation for services to UP, UP agrees to
pay to Executive the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) per
annum payable in twenty-four (24) as equal as possible payments, one such
payment being made twice each month. Such compensation shall be reviewed
annually and may be increased annually following each such annual review of the
Executive's performance. Such compensation, as it may be increased annually,
shall not be decreased during the term of this Agreement.
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3. Benefits. UP agrees to provide Executive the following
benefits, commencing with the Effective Date hereof or as soon thereafter as
practicable (all of which shall vest as of the date thereof or at such date or
dates as provided in the plan documents establishing such benefits) and
continuing for so long as Executive is employed under this Agreement or any
extension hereof.
(a) Any fringe benefit package presently offered or to be
offered in the future generally to the employees of UP, such as health
and dental insurance, disability insurance and participation in the
ESOP and 401K Plans of UP, on the same basis as offered to other
similar senior executives of UP participating therein.
(b) An annual paid vacation in accordance with UP's
Personnel Policy. At least two (2) weeks of such vacation shall be
taken consecutively.
(c) Any other benefits generally provided to similar
senior executives of UP as the Board of Directors may, from time to
time, approve.
4. Additional Benefits and Bonuses. In addition to those benefits
set forth in Paragraph 3 above, Executive shall receive the following benefits
and bonuses:
(a) Reimbursement of membership dues and assessments
incurred during the term of this Agreement, in the appropriate country
and civic clubs as approved by the UP Chairman or UP President in
accordance with normal policies regarding club dues.
(b) An eligibility to participate in UP's Key Officer
incentive bonus program. For the first year of service by Executive
hereunder, Executive shall be guaranteed an incentive bonus of at least
thirty-two percent (32%) of base salary.
(c) Upon the Effective Date hereof, the Executive shall
receive an initial grant of ten thousand (10,000) restricted shares of
Union Planters Corporation("UPC") Common Stock (the "Initial Stock").
(d) Upon the Effective Date hereof, the Executive shall
receive an initial grant of options to purchase (at the closing market
price upon date of grant) twenty thousand (20,000) shares of UPC Common
Stock (the "Initial Options").
The Initial Stock described in paragraph 4(c) above shall vest
in equal portions over nine (9) years. The Initial Options described in
paragraph 4(d) shall vest in equal portions at the end of each year of
the Initial Term. If at any time during the Initial Term, Executive
voluntarily terminates his employment hereunder for Good Reason, as
described in paragraph 10, then the unvested portion of the Initial
Options shall automatically be vested. Executive shall be considered
annually for the grant of additional stock options by the UP Stock
Option Committee on the same basis as other senior executives of UP.
(e) Executive shall be eligible to participate in UP's
Executive Deferred Compensation Plan.
5. Expenses. Executive is authorized to incur necessary and
customary expenses in connection with the business of UP. UP will pay or
reimburse Executive for such expenses upon presentation by Executive of the
appropriate records which verify such expenses in accordance with normal expense
policies. Executive shall be granted an automobile allowance of $500.00 per
month during the term hereof. Relocation expenses, such as moving, travel, and
temporary living expenses, shall be governed by UP's policy on such expenses.
6. Termination. This Agreement shall terminate upon the first to
occur of the following:
(a) The expiration of the term provided for in Paragraph
1;
(b) The death of the Executive;
(c) The permanent disability of Executive, as defined in
Paragraph 8;
(d) The Termination for Cause of the employment of the
Executive, as defined in Paragraph 9;
(e) Termination of the employment of the Executive by UP
without cause or by the Executive for Good Reason, as described in
Paragraph 10; and
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(f) Termination of employment by the Executive without
Good Reason, provided that Executive shall give at least ninety (90)
days prior written notice of termination. UP reserves the right to
accelerate Executive's termination under this provision and pay to
Executive accrued Base Salary through the date of the termination as
determined by UP, and any other benefits to which the Executive is
entitled upon his termination of employment with UP, in accordance with
the terms of the plans and programs of UP.
7. Noncompetition. For a period of two (2) years from the date of
any voluntary termination of this Agreement by the Executive without Good
Reason, the Executive covenants and agrees that: (a) the Executive shall not,
directly or indirectly, on his own behalf, or as an employee, representative, or
agent of a third party, by ownership of any type of interest in any business
enterprise or by any other means whatsoever, engage in any business or
activities which are competitive with UP's business (a "Competitor's Business")
within the states where UP maintains and operates banking offices or become
associated with or render services to a Competitor's Business; and (b) the
Executive shall not, directly or indirectly, call upon or solicit any customers
of UP or any presently existing affiliate for any purpose or business that is
competitive with UP's business. For the purposes of this paragraph, the term
"Competitor's Business" shall apply only to such businesses or activities
conducted by a competitor of UP within the states where UP maintains and
operates banking offices.
Nothing in this Paragraph 7 shall prohibit the Executive from being (i)
a stockholder in a mutual fund or a diversified investment company or (ii) a
passive owner of not more than two (2) percent of the outstanding stock of any
class of a corporation, so long as the Executive has no active participation in
the business of such corporation.
8. Death or Disability.
(a) In the event of the termination of the employment of
the Executive due to his permanent disability or death, the Executive
(or in the event of his death, his executor, administrator or other
personal representative) shall receive:
(1) accrued Base Salary through the date of the
termination of the Executive's employment;
(2) any annual bonus owing but not yet paid for
any fiscal year ended on or before the Executive's termination
of employment; and
(3) any other benefits to which the Executive is
entitled upon his termination of employment with UP due to his
death, in accordance with the terms of the plans and programs
of UP.
(b) "Disability" as used herein, means a physical or
mental condition of the Executive determined by UPC in accordance with
standards and procedures similar to those under UPC's employee
long-term disability plan, if any. At any time that UPC does not
maintain such a long-term disability plan, Disability shall mean the
inability of Executive, as determined by UPC, to substantially perform
Executive's regular duties and responsibilities due to a medically
determinable physical or mental illness which has lasted (or can
reasonably be expected to last) for a period of six (6) consecutive
months.
9. Termination for Cause. As used in Paragraph 6(d), "Termination
for Cause" means a termination of the Executive's employment because the
Executive engages in theft, fraud, or embezzlement causing significant damage to
UP. The determination of theft, fraud, or embezzlement will be made by the UP
Board of Directors in good faith, but such determination does not require an
actual criminal indictment or conviction prior to or after such decision.
If UP terminates the Executive's employment for Cause, he
shall be entitled only to:
(1) accrued Base Salary through the date of the
termination of his employment; and
(2) any other benefits to which the Executive shall be
legally entitled upon his termination of employment with UP, in
accordance with the terms of the plans and programs of UP.
10. Termination by UP without Cause or by the Executive for Good
Reason. As stated in Paragraph 6(e) hereof, Executive's employment may be
terminated by UP without Cause. In addition, the Executive may voluntarily
terminate his employment with UP for Good Reason. For purposes of this
Agreement, "Good Reason" shall mean any material breach of this Agreement by UP,
including but not limited to, (1) any reduction in Executive's Base Salary or
incentive opportunities, (2) any material reduction in benefits to which the
Executive shall be entitled under the plans and programs of UP (unless such
reduction is equally applicable to all senior executives of UP,
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including the Executive), (3) any material reduction in the Executive's
employment responsibilities or in his office or title, or (4) the Executive's
relocation from the greater metropolitan area of Memphis, Tennessee, without his
consent. Upon termination of the employment of the Executive by UP without Cause
or the voluntary termination of such employment by the Executive for Good
Reason, the Executive shall receive:
(1) accrued Base Salary through the date of the
termination of his employment;
(2) any annual bonus owing but not yet paid for any
fiscal year ended on or before the Executive's termination of
employment;
(3) any other benefits to which the Executive is entitled
upon his termination of employment with UP, in accordance with the
terms of the plans and programs of UP; and
(4) a lump sum amount equal to Executive's Base Salary
for the remainder of the term of this Agreement then in effect, but not
less than one year's Base Salary.
11. Termination following a Change in Control. If a Change in
Control, as hereinafter defined, occurs during the term of this Agreement and
within one (1) year after such Change in Control, Executive's employment shall
be terminated for reasons other than Cause as described in Paragraph 9 hereof,
or if following such Change in Control, the Executive terminates his employment
for Good Reason, then Executive shall receive:
(1) accrued Base Salary through the date of termination
of his employment;
(2) a lump sum equal to Executive's Base Salary due for
the remainder of the term of this Agreement then in effect, but not
less than one year's Base Salary;
(3) any annual bonus owing but not yet paid for any
fiscal year ended on or before the Executive's termination of
employment; and
(4) any other benefits to which the Executive is entitled
upon his termination of employment with UP, in accordance with the
terms of the plans and programs of UP.
"Change in Control" means the occurrence of any of the
following events:
(1) The acquisition by any individual, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Securities Exchange Act of 1934, as amended) of 25% or more
of either (a) the then outstanding shares of common stock of UPC (the
"Outstanding Company Common Stock") or (b) the combined voting power of
the then outstanding voting securities of UPC entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection
(1), the following acquisitions shall not constitute a Change in
Control: (w) any acquisition directly from UPC, (x) any acquisition by
UPC, (y) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by UPC or any corporation controlled by
UPC, or (z) any acquisition by any Person pursuant to a transaction
which complies with clauses (A), (B), and (C) of subsection (3) of this
Section; or
(2) Individuals who, as of the date hereof, constitute
the Board of Directors of UPC (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by UPC's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(3) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of UPC (a "Business Combination"), in each case, unless,
following such Business Combination,
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(A) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and outstanding Company Voting
Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 65% of, respectively, the then
outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting
from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns UPC or all or
substantially all of UPC's assets either directly or through one or
more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, and
(B) no Person (excluding any corporation resulting from
such Business Combination or any employee benefit plan (or related
trust) of UPC or such corporation resulting from such Business
Combination) beneficially owns directly or indirectly, 25% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined
voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to
the Business Combination, and
(C) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Business Combination.
12. Non-Disclosure. For a period of five (5) years after the date
of any termination or expiration of this Agreement, Executive will not disclose
any information deemed Confidential Information, except (i) to a person who is
an authorized employee (as such term is defined in Paragraph 13), (ii) as
required by law, regulation or order of any court or regulatory commission,
department or agency or (iii) as part of a confidential communication to an
attorney. If Executive shall attempt to disclose the Confidential Information or
any part or parts thereof in a manner contrary to the terms of this Agreement,
UP shall have the right, in addition to other remedies which may be available to
it, to injunctive relief enjoining such acts or attempts, it being acknowledged
that legal remedies are inadequate. This provision shall survive termination of
this Agreement for the five (5) year period above provided.
13. Definition of Confidential Information and Authorized
Employee. Confidential Information means any information not disseminated by UP
to the general public (including identity of customers, clients, business
contacts, suppliers of goods and/or services, and any transaction by or between
such person or entities and UP) and which Executive used or knew of because of
his employment at UP, including specific information about methods not generally
employed in the industry at large and which are used or known to be contemplated
for use in the future by UP for the purpose of gaining proprietary advantage
over competitors; provided, however, that Confidential Information shall not
include general knowledge of skills and techniques acquired or improved as a
result of the employment experience at UP. Authorized employee means with
respect to UP, members of the UP Board of Directors; the Chief Executive
Officer; the President; Executive Vice Presidents; immediate supervisors; a
fellow employee on a need-to-know basis only; and any UP employee in the course
of the performance of the Executive's duties pursuant to this Agreement.
Executive shall be entitled at all times to disclose Confidential Information to
his personal attorney on a confidential basis and as may otherwise be required
by law.
14. Assignment. The rights and obligations of UP and Executive
(except Executive's obligation to perform services) under this Agreement shall
inure to the benefit of and shall be binding upon their respective successors,
if any.
15. Execution of Agreement. The execution of this Agreement shall
be final upon signing by UP and the Executive, and shall not require the
approval or ratification of any Committee or of the Board of Directors.
16. Entire Agreement. This Agreement contains the entire agreement
between the parties and supersedes all prior discussions, understandings and
commitments, if any, whether oral or written. This Agreement cannot be amended
or modified except by subsequent written agreement signed by all of the parties.
In agreeing that this Agreement may not be changed in any way except by a
written and executed document, the parties knowingly waive and give up any
constitutional right which they may otherwise have to amend or modify this
Agreement by some means other than in writing. Finally, any agreement between UP
and Executive which concerns any subject dealt with by this Agreement shall be
considered an amendment or modification of this Agreement and not an agreement
separate from this Agreement.
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17. Arbitration. Any dispute or controversy between UP and the
Executive, whether arising out of or relating to this Agreement, its
interpretation, its breach, or otherwise, shall be settled by arbitration in
Memphis, Tennessee, administered by the American Arbitration Association, with
any such dispute or controversy arising under this Agreement being so
administered in accordance with its rules then in effect, and judgment on the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall have the authority to award any remedy or relief
that a court of competent jurisdiction could order or grant, including, without
limitation, the issuance of an injunction. However, either party may, without
inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court proceedings
to enforce this arbitration provision or an award rendered hereunder, or to
obtain interim relief, neither a party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior
written consent of UP and the Executive. Notwithstanding any choice of law
provision included in this Agreement, the United States Federal Arbitration Act
shall govern the interpretation and enforcement of this arbitration provision.
18. Controlling Law. This Agreement and the rights and obligations
hereunder shall be governed by and construed in accordance with the federal law
of the United States of America, and in the absence of controlling federal law,
in accordance with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EXECUTIVE
/s/ Xxxx X. Xxxxxxxxx
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UNION PLANTERS BANK, N.A.
By:/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Operating Officer
UNION PLANTERS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
President and Chief Operating Officer
